Promise as a ground of obligation in late antiquity: Documentary practice, doctors of the church, and the visigothic liber gai

Abstract

The post-classical change in the Roman contractual system is often characterised by outlining two developments: The shift from orality to writing, and the careful extension of actionability to an increasing number of pacta. Drawing on documentary practice, the writings of St. Augustine and the Visigothic Liber Gai, this article proposes to broaden the common narrative and integrate a third development: The tendency towards a dissociation of the verbal contract. It is no longer seen as a unitary act to which the creditor's question provides the more important contribution. Instead, it is perceived as being essentially a promise, to which the preceeding interrogatio adds nothing but a necessary formality. Thus, Civil law recognises the binding force of promises already before the intervention of medieval Christian jurists.